Monday, 22 September 2014

Day 235: The choices they made

It would appear that I was not the only one eager to witness the resumption of the Montreal tobacco trials. For the first time since the trial opened 30 months ago (on March 12, 2012), it was standing room only in Justice Riordan's court as the plaintiffs prepared to present their final arguments in this long trial.

For once the public gallery was more populated than the lawyers' benches.Sitting on the plaintiff's left hand side of the room were a dozen or so members of the class of the Blais class action - smokers suffering from lung cancer, throat cancer (cancer of the larynx, the oropharynx or the hypopharynx) or emphysema. Among them were the son and widow of Jean-Yves Blais, who died a few months after the trial of the lawsuit that carries his name had opened. Also present was Cécilia Létourneau, the representative of the Létourneau class action for those who have become addicted to cigarettes. The plaintiffs were also supported by many friends and colleagues who were present to watch this big moment.

The defendants' side was filled with both new and familiar faces - including some anonymous, if highly noticeable, consultant attorneys.

And, very unusually, there were also several journalists from the mainstream media present.

A big crowd. A sense of excitement. So of course there was a delay.

Will this show really go on?

All summer I had wondered whether Imperial Tobacco would find a way to delay his last stage of the trial. So successful had they been at causing delays in earlier stages, that I even placed a $5 wager that they would come up with a new legal device to preempt proceedings. I lost the bet.

There was a delay - but it was due to technical problems associated with the overhead projectors. The silver lining in long pause this inserted at the beginning of the day was that the retreat to the hallway allowed the media to gather their interviews comfortably and gave everyone a chance to catch up on a summers' worth of news.

That's not to say that Imperial Tobacco did not come up with something unexpected to insert into the proceedings. They did indeed come up with yet another motion which will trigger yet another debate and yet another ruling by Justice Riordan - which they can maybe yet again appeal.

Later this week (Thursday) ITL's lawyers will argue their motion to strike out the parts of the plaintiff's argument which allege that the companies abused court procedures. (If I were Justice Riordan, I would love a detailed discussion of the court-room tactics used by that team over the past years.)

As it was, the morning was well underway before André Lespérance began his introduction to the plaintiffs' overview -- a case which will be presented over the coming days by the members of their legal team.

Oral and written arguments

Justice Riordan has had the plaintiffs' written arguments for more than two months, and has had the written version of the defendants' sides of the story for a week or more. There is probably nothing that will be said over the next weeks that he has not already read and grasped.

He complimented the legal teams on the quality of these briefs, saying that this had made his job easier. "But they could have been shorter," he observed with a smile. "Two thousand pages is a lot to read!"

After boiling down hundreds of days of testimony and thousands of documents into a core argument, the lawyers at this stage must make yet a further distillation to fit what they need to say into the time (about 4 days each side) and attention span available. More than any previous stage of the trial, the performance art aspect of lawyering shone through today.

Framing. Linking. Reminding

André Lespérance's job was to set the stage. He began by quoting from his opponent in this case, the head of JTI-Macdonald's defence team. He read back words used by Mr. Guy Pratte at the beginning of the trial: in life, as in law, one must accept the consequences of one's choices.

"We agree with this," said Mr. Lespérance today. "And this class was authorized to examine the choices made by the defendants."

Mr. Lespérance elaborated over the day on the choices the companies had made. "The first choice they made -- very early, and in the 1950s -- was to not inform consumers of the risks of their products. ... They made the choice to sell a product that causes serious illness and addiction in the large majority of users."

A morning spent in 1977

A difficult task in telling a story through documents is finding a way to link seemingly disparate events. Mr. Lespérance used the device of shining the spotlight on documents from the year 1977. This allowed him to contrast the internal knowledge of the documents with their external activities.

With thousands (and thousands!) of exhibits on the trial record, it might be easy to challenge any selection of documents as mere cherry-picking. But by focusing on so many elements from just one year, Mr. Lespérance gave the impression that it was a very deep bowl of cherries indeed.

It was a good choice of year -- 1977 was smack dab in the middle of the 40 years covered by this trial (from late 1950s to 1998). And there was apparently much that happened in it:
  • the internal reflections of company scientists that the time had passed to deny that tobacco caused cancer and other diseases (Exhibits 125, 29)
  • the acknowledgement of the scientists that it was fear of lawsuits that stopped the companies from being more truthful (Exhibit 29), and turned them into the "Flat Earth Society" (Exhibit 948)
  • the creatiaon of the the International Council on Smoking Issues (ICOSI)
  • the companies secret pact to not acknowledge health risks. (Exhibit 1507)
  • the efforts by the companies to countering anti-smoking activities. (Exhibits 128, 957, 958, 580, 580C, 968I).
  • the rejection of government requests to improve health warnings on cigarettes (Exhibit 50004)
  • the use in Canada of disinformation produced by the Tobacco Institute (Exhibit 958, 15C, 475) 
  • the reliance on industry-funded scientsts to create a controversy (Exhibit 964C)
  • the "noise" created by advertising and public relations to dilute public health messages 
  • the awareness of the companies that smokers did not fully understand the risks of smoking, and that they believed that changing brands (i.e. lighter cigarettes) would reduce their risks. (Exhibit 987.6, 987.8) 
  • the companies' knowledge that smokers were misled by terms like "light" (Exhibits 243, 954)
Mr. Lesperance returned frequently to the actions of the companeis when faced with the knowledge of the harms they were causing. "What is their responsibility? To tell the truth or to tell a lie? You will see that through the CTMC they put a plan in place to deny causality. They saw their responsibilty as being to shareholders, not to consumers." 

An afternoon spent in denial

Having anchored his themes in 1977, Mr. Lespérance spent the afternoon showing how the same events continued and evolved in the following years.  As he presented it, the strategic thinking became even more cynical. 

In response to a hint from Justice Riordan that the view that there might be some logic to the companies' position that the federal government was more credible author of attributed health warnings than unattributed ones, Mr. Lespérance presented a series of exhibits showing the companies resisting non-attribution for legal reasons.

He showed a selection of documents from the mid 1980s that showed ITL market planners visualizing increasing sales by discouraging healtahconcerns. Among these were the thoughts of ITL's future president, Bob Bexon (Exhibit 267). 

Against the companies' current position that they have always acknowledged the risks of smoking, Mr. Lespérance presented several examples from the 1980s and 1990s of their clear denial. (Exhibits 850, 841, 867, 26).

The most historically memorable of these, of course, were the times that the companies testified in Parliament, before the Isabelle Committee in 1969 and during the passage of legislation in 1987, 1988 and 2000. Justice Riordan spoke more discouragingly of the use of any parliamentary records than he has in the past - even if the record involves a newspaper report of a parliamentary comment. 

"The key is the purpose," Justice Riordan Stressed. "A document could be privileged for one use and not for another." 

Mr. Lespérance was, however, able to use the testimony of the trial's first witness - Michel Descoteaux - to establish that it was not until 2000 that ITL publicly acknowledged causation.

More dangerous and still the biggest health problem

Cigarette smoking has not become safer over the past decades, Citing more recent epidemiology, Mr. Lespérance said smoking was more dangerous than before, contrary to "what the companies say -- that there has been no increase in risks,  despite changes in the design."

"Even now, cigarettes are the largest public health problem - as they have been for years."

Selling cigarettes is a fault?

Mid afternoon Justice Riordan made a rare intervention as Mr. Lespérance was explaining the importance of social acceptability to smokers, and how cigarette advertising created a noise that prevented public health messages about smoking from reaching smokers.

"Your point is that selling cigarettes is a fault?" asked Justice Riordan. "The simple fact of putting a favourable impression on the product is a fault, because it is harmful? ("nocif")

"Yes"  was the clear answer. 

Tomorrow Mr. Lespérance and Pierre Boivin will present the case on addiction and "safer cigarettes"